Citation Nr: 1307060
Decision Date: 03/01/13 Archive Date: 03/11/13
DOCKET NO. 10-34 078 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to waiver of indebtedness for the advance payment in the amount of $3,000.00.
ATTORNEY FOR THE BOARD
S. M. Kreitlow
INTRODUCTION
The Veteran had active service from February 2003 to September 2003.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Committee on Waivers and Compromises of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The Board finds that remand is necessary to supplement the record. Presently, the only evidence of record is the February 2010 demand letter showing indebtedness in the amount of $3,000.00; the Veteran's claim for a waiver of this indebtedness; the decision by the Committee on Waivers and Compromises; the Veteran's Notice of Disagreement with a copy of an email from VA dated January 21, 2010 (acknowledging receipt of an enrollment certificate from the Veteran's school for July 13, 2009 to October 4, 2009, October 12, 2009 to January 10, 2010, and January 11, 2010 to April 3, 2010); printout of Payment History Inquiry Screen showing a payment of $3,000.00 was made to the Veteran on October 7, 2009; Chapter 33 Payment History report; June 2010 Statement of the Case; and Veteran's VA Form 9 with attachments.
Presently, there is nothing in the claims file with regard to the Veteran's request for an advance payment although, according to an "Advance Pay Question & Answers" information sheet from VA's website, in order to get the advance payment she had to appear in person at the closest RO with appropriate identification and proof of enrollment (class schedule, admission letter, enrollment verification letter, etc.) and had to sign for the payment upon receipt. Consequently, there should be some record of this payment and satisfaction that the requirements for making the advance payment were met. Such should be associated with the claims file on remand. In addition, the Veteran purportedly certified at the time that she received the advance payment that she understood that it would need to be repaid. However, there is nothing in the claims file to indicate that she signed any such statement. Such should also be associated with the claims file on remand.
Moreover, the Board notes that the Committee on Waivers and Compromises initially denied the Veteran's claim for a waiver on the basis that there was no evidence that she was enrolled in school during the Fall of 2009. This begs the question then of how she obtained the advance payment if she was required to show proof of enrollment in order to get it. Nevertheless, the Committee was correct that there was nothing of record to demonstrate that the Veteran was enrolled in school during the Fall of 2009 at the time it rendered its decision. Subsequently, however, the Veteran submitted a copy of an e-mail that she received from VA on January 21, 2010 in which VA acknowledged receiving an enrollment certificate from her school for the periods of July 13, 2009 to October 4, 2009; October 12, 2009 to January 10, 2010; and January 11, 2010 to April 3, 2010. Despite the Veteran's having had to show proof of enrollment at the time of the request for the advance payment, as well as submitting the copy of the January 2010 e-mail from VA regarding her enrollment, a copy of the enrollment certificate has not been associated with the claims file. Such should be done on remand.
Further, for her to get an advance payment, she had to have a pending claim for education benefits. She has stated that she filed an online claim for Chapter 33, Post-9/11 GI Bill, benefits on August 1, 2009. A copy of that application is not, however, associated with the claims file and should be on remand.
The Veteran stated on an attachment to her VA Form 9 that she used the $3,000.00 advance payment to pay her tuition. The Payment History Inquiry Screen printout, however, demonstrates that VA made payments directly to the Veteran's school in the amounts of $2,633.41 and $1,180.00 on February 10th and 11th of 2010, respectively. There is no indication that these payments were returned to VA. Thus, on remand, the Veteran's school should be contacted and asked to account for these payments and what happened to these funds.
Finally, the Veteran has stated that, after receipt of the advance payment, she only received one payment of less than $200.00 from VA during the time she was enrolled in school. See VA Form 9. In another statement, she stated that the advance payment should have been recouped from future VA payments that were never sent even though she was enrolled for two semesters. The Payment History Inquiry Screen shows, however, that VA paid the Veteran two payments in the amounts of $416.70 and $166.68 on February 10th and 11th of 2010, respectively. In addition, as previously mentioned, VA sent two payments directly to the Veteran's school on those same dates. Given the differences between what the Veteran asserts and what the Payment History Inquiry Screen shows, the Board finds that an accounting of the Veteran's education benefit payments should be conducted and that it should indicate whether each payment was issued to the Veteran or her school or was applied for recoupment of the advance payment.
Accordingly, the case is REMANDED for the following action:
1. Associate with the claims file the Veteran's application for Chapter 33 education benefits reported by the Veteran as being filed online in August 2009.
2. Associate with the claims file all documents relating to the advance payment made to the Veteran on October 7, 2009, to include but not limited to proof of school enrollment, signed receipt for payment, and signed certification showing the Veteran agreed to repay the advance payment.
3. Associate with the claims file the enrollment certification received from the Veteran's school as confirmed in the January 21, 2010 e-mail from VA to the Veteran.
4. Contact the Veteran's school to obtain an accounting of the payments it received from VA on behalf of the Veteran in February 2010 to include an explanation as to how the funds were applied and what happened to any excess funds received
5. Conduct an accounting of the Veteran's Chapter 33 education benefit payments and include an indication of whether the payment was issued to the Veteran or her school or was applied to recoup the advance payment made to the Veteran.
6. Thereafter, the Veteran's claim for a waiver of indebtedness for the advance payment in the amount of $3,000.00 should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112.
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THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the Court This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).